Sparks v. Pace

Stayton, Associate Justice. The right of Pace to subject the cotton to sale under his execution cannot be questioned, even though Sparks held a prior valid mortgage upon it. R. S., 2296. A sale under his execution would not have divested any right which Sparks had under his mortgage, for a purchaser would have bought subject to the prior lien, if valid. If, after sale under Pace’s execution, the purchaser thereat had attempted, by removing the cotton from the county or otherwise, to impair or defeat his right, Sparks might have brought suit against Holbrook on his claim, whether due or not, and to that suit might [300] have made the purchaser under Pace’s execution a party, and have sequestrated the property. R. S., 4489, 4493. Such proceeding would fully have protected any interest which he had; but instead of pursuing it he instituted a proceeding under the statute to try the right of property. To this be was not entitled, under the repeated rulings of this court, he not being in possession, nor entitled to the possession, of the property. By this proceeding he prevented Pace from exercising his right to have the cotton sold, and impeded him in his remedy for about one year, and upon the trial of the cause the judgment which the statute provides was'rendered against him, and he sought in this suit to enjoin the enforcement of that judgment against himself and sureties, upon the ground that pending that suit he had obtained a judgment against Holbrook, and had sold in part satisfaction of his debt, secured by mortgage, the cotton, of which he received the possession in the suit to try his right to the property. Having resorted to a remedy to which he was not entitled, the proper judgment under the statute was rendered against him, and this he could discharge only by complying with his bond; this he did not do, by returning the property to the officer from whom he received it, as provided by the statute, and it only remained for him to pay the judgment, which could not be discharged by anything done under a judgment rendered in a cause to which Pace was in no manner a party. The rights of Sparks, under his mortgage, which could not be affected by the trial of right of property, could only be protected by complying with the judgment. If he had rendered it impossible for him to do that, this is not the fault of the appellee. That the cotton, when sold under the judgment in favor of Sparks against Holbrook, did not sell for enough to satisfy that judgment, was unimportant. . Having instituted a proceeding under the statute which he was not entitled to maintain, it followed that he properly had imposed upon him the penalty which the statute prescribed, from which he was not in law or equity entitled to any relief, and the court below very properly dissolved the injunction and dismissed his bill. The judgment is therefore affirmed. Affirmed. [Opinion delivered November 6, 1883.]